United States Supreme Court to determine whether threats are protected free speech under First Amendment

Many crimes require proof that the defendant specifically intended to cause the harm alleged by the crime. In Massachusetts, obtaining a civil harassment protective order requires the complainant to prove that the defendant intentionally placed someone in fear of harm using their words or acts. Just recently, however, the Supreme Court heard arguments to determine whether the First Amendment actually protects such expressions, if the speaker/actor did not intend to place anyone in fear.

Threats and First Amendment Protection
It is a federal offense to transmit any communication threatening to injure another person. The Supreme Court has repeatedly held the First Amendment does not protect individuals who threaten others, whether in person, by phone, email, or even social networking programs. But until today, the Court has never explained how a trial judge should determine what a “true threat” is, such that it would not be protected by the First Amendment. More specifically, the Court has not determined whether a threat is only a true threat if the speaker/actor intended to place another in fear, or whether it is enough that a reasonable person would be put in fear.

Relevance of Subjective Intentions
In the case of Elonis v. U.S., the defendant was charged and indicted on five counts of the federal offense of making threats, including one against his ex-wife and another against a FBI agent. The defendant’s wife moved out of the family home with their children, causing the defendant to suffer an emotional breakdown. The defendant began to publish postings on Facebook that included violent rap lyrics and photographs, particularly directed at his ex-wife. The defendant’s Facebook page subsequently caught the attention of the FBI, which visited the defendant to investigate further. After his in-house interview with the agent, the defendant created more violent rap lyrics, this time referring to the FBI agent, and posting them on his public Facebook page.

The defendant challenged the prosecutor’s case, arguing that the First Amendment protects his statements as free expressions, unless the prosecutor could prove that the defendant actually intended to threaten or place others in fear. In other words, it is not enough that either his ex-wife or the agent felt threatened; it is not an objective analysis as to whether a reasonable person would feel threatened. Instead, the defendant argued that for the charge to survive the constitutional challenge, the prosecutor must satisfy a subjective standard – that the defendant subjectively intended to threaten others. The trial court applied the objective standard, however, and instructed the jury accordingly. This is also how the Massachusetts Supreme Judicial Court interprets its own state laws on this issue as well. See Our First Circuit Court of Appeals, however, applies the objective standard.

Supreme Court Seeks Balance
During arguments, the Supreme Court seemed very on edge and troubled by the question of how it should instruct lower courts to distinguishing “true threats” (which are criminal offenses) from seemingly threatening statements that are protected free speech. The Court heavily questioned the attorneys, seeking a prudent balance between freedom of expression as weighed against the public’s interest in safety and the government’s interest in preventing harm to its citizens. The defendant’s appeal warned that lowering the threshold for “speech crime” by adopting an objective standard would result in the unintended and unforeseeable consequences of innocent citizens being imprisoned “for negligently misjudging how others would construe his words,” which would “erode the breathing space that safeguards the free exchange of ideas.”

Since this case falls under both federal statutes as well as the First Amendment, the Supreme Court’s decision will only trump state court decisions applying federal law. Massachusetts courts, however, may choose to extend protection to defendants under the Massachusetts declaration by continuing to require proof of specific intent. A Massachusetts criminal defense attorney may therefore continue to argue that the state courts ought to protect the defendant’s expressions under the Declaration of Rights, requiring state and county prosecutors to continue to prove specific intent on charges based on state crimes.

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